Have legal questions? The 6th Judicial District Access to Justice Committee in conjunction with the Southwest Colorado BAR Association and the Southwest Bar Volunteer Legal Aid/Colorado Legal Services announce a Legal Resources Fair that is free and open to the public on Jan. 21, from 4 to 7 p.m. at the La Plata County Fairgrounds Exhibit Hall.

What are the zoning laws for grow houses?

Answer: The Colorado Constitution permits both the personal and commercial cultivation of medical and recreational marijuana. Both types of cultivation are governed by the Colorado Constitution and by local governments.

Amendment 20, which allows patients to engage in the medical use of marijuana to treat a debilitating medical condition Colorado, allows patients and their primary caregivers to possess no more than six marijuana plants (with three or fewer being mature, flowering plants that are producing a usable form of marijuana), and two ounces of marijuana, Co. Const. Art. 18 § 14(4)(a)(2), Co. Const. Art. 18 § 14(4)(a)(1). Amendment 20 prohibits this use from being in the plain view of, or in a place open to, the public. Co. Const. Art. 18 § 14(5)(a)(2).

Amendment 64 allows for the personal cultivation of marijuana by adults 21 and over, Co. Const. Art. 18 § 16(3)(b). Like Amendment 20, personal cultivation under Amendment 64 is limited to six plants (three mature and three flowering), which must be cultivated in an enclosed, locked space, and must not be cultivated openly or publicly, Co. Const. Art. 18 § 16(3)(b).

Although Amendment 20 and Amendment 64 prevent local governments from directly limiting a patient’s or citizen’s ability to cultivate, many have opted to impose limits on cultivation via zoning restrictions. For example, some local governments have enacted ordinances limiting the total number of plants per residence, regardless of the number of inhabitants. Local zoning regulations allow for a balance between protecting constitutional rights and the health and safety of the community. Denver, for example, limits the number of plants in a dwelling to no more than 12, Denver Code Art. 11 §8.4.1(a). In addition to a 12 plant-per-dwelling restriction, Fort Collins also has restrictions on cultivation in multi-family residences. Specifically, Fort Collins has banned personal cultivation of marijuana in any dwelling in a duplex, multi-family or single family attached dwelling, Fort Collins Code, Art. IX §12-142(b). These local restrictions on personal cultivation have never been challenged.

Commercial cultivation of marijuana is regulated primarily by local governments. The majority of local jurisdictions restrict cultivation facilities to industrial, agricultural, and/or commercial zones. In addition, both the state and local governments have enacted regulations restricting the proximity of cultivation facilities to schools or other areas where children are likely to congregate. While zoning and setbacks vary in each locality depending on its size and character, a number of Colorado jurisdictions impose setback requirements between cultivation facilities and schools.

The statute governing medical marijuana requires that state-licensed medical cultivation facilities be more than 1,000 feet from any school park, child care, drug or alcohol treatment facility, or the main campus of a college, university or seminary, but allows local governments to vary these distance restrictions through rule or regulation, C.R.S. § 12-43.3-308(1)(a). While Amendment 64 leaves it entirely up to local governments to regulate state-licensed recreational marijuana establishments, many localities impose these same restrictions. Most of these regulations include setbacks from schools, daycares and drug treatment facilities, as well as limiting the use to industrial, agricultural and commercial zones. A number of jurisdictions also include setbacks from residential areas and requirements that cultivation facilities be equipped with an odor-mitigation filtration system so as to minimize any potential nuisance.

The Colorado Bar Association welcomes your questions on subjects of general interest. This column is meant to be used for general information only and not specific legal advice; consult your own attorney for advice on specific situations. To submit general legal questions to the CBA, please email Courtney Gibb at cgibb@cobar.org.

About Legal Lines

Legal Lines is a question and answer column provided as a public service by the Colorado Bar Association. Attorneys answer questions of interest to members of the public for their general information.

About the Colorado Bar Association

The Colorado Bar Association is a voluntary bar association with more than 18,000 members — almost three-quarters of all attorneys in the state — founded in 1897. The bar provides opportunities for continuing education, volunteering and networking for those in the legal profession while upholding the standards of the bar. The bar likewise works to secure the efficient administration of justice, encourage the adoption of proper legislation and perpetuate the history of the profession and the memory of its members. For more information, visit cobar.org.

Answer: Yes, you can lose your job because of the use, possession, sale or distribution of marijuana on the job.

While companies can choose to have different policies, many of them choose to have a “zero tolerance” policy. Many companies have zero tolerance for employees who sell or distribute marijuana at the worksite, and many have policies stating that possessing it on the job is also grounds for discharge. Likewise, you might assume that using it on the job, even on breaks, can get you fired. But what about just having it in your system when at work? What if you used it the night before, or the month before, and it’s still in your system when you are drug-tested?

That’s a question that Brandon Coats learned the hard way. Coats was a medical marijuana user, who, according to the facts laid out in a recent decision by the Colorado Court of Appeals, Coats v. Dish Network LLC, had never used marijuana while at work. Still, he came up positive on a drug test and was discharged. The Colorado Court of Appeals held that nothing in Colorado’s medical marijuana statute gave him a right to use marijuana, at least not as to his employer. Rather, Colorado’s medical marijuana laws create a limited exception to criminal enforcement. On Jan. 27, the Colorado Supreme Court agreed to hear an appeal of Coats’ case. While some lawyers think the Court of Appeals got it wrong, and indeed one judge dissented, the decision is consistent with precedent and finds its roots in the undisputed principle that marijuana was and remains a federal controlled substance, even in states like Colorado that have now passed not only medical but recreational marijuana laws. Colorado’s medical and recreational marijuana laws have language saying they do not apply to employers, and while some attorneys believe that language should be read more narrowly than the Court of Appeals has, however it is read, whatever Colorado law might say, it remains federal law that marijuana is a criminally controlled substance.

So at this point in time, you clearly can lose your job because of marijuana use. This could eventually change, as a decision from the Colorado Supreme Court is expected later this year.

The Colorado Bar Association welcomes your questions on subjects of general interest. This column is meant to be used as general information. Consult your own attorney for specifics. To submit general legal questions to the CBA, please email Courtney Gibb at cgibb@cobar.org.

Legal Lines is a question and answer column provided as a public service by the Colorado Bar Association. Attorneys answer questions of interest to members of the public for their general information.

Answer: You can help protect your animal companion by creating a pet trust. There are two types of trusts, one is called an inter vivos trust also known as a “living” trust and the other is called a testamentary trust, which would be part of your will.

A living trust will take effect if you are no longer able to care for your pet and per your specific instructions (absence, disability, incapacity) and during your lifetime whereas a trust that is part of your will takes effect as your will does — only upon death.

As the “settlor,” you decide who would be the best candidate to take care of your animal companion (“successor caretaker”) when you are no longer able. You also need to decide who is the best candidate to take care of the monetary funds (successor trustee), which would be used to financially care for your pet.

In many, if not most instances, the caretaker and the trustee are different people, as they have very different skill sets. The caretaker should be someone that you already know loves animals and has knowledge and experience caring for the kind of animal you have. It will be someone who enjoys caretaking and someone who understands and will carry out the type of care your animal companion needs.

The trustee will be someone who has experience managing money responsibly and who also understands the costs involved in routine and extraordinary care of your animal companion. The trustee will also be someone comfortable ensuring that the caretaker is using the trust funds responsibly and only for the benefit of your pet.

As the settlor, you need to ensure you specify the date upon which your successor caretaker and trustee will take effect. If you don’t want to specify a particular date, you need to specify a particular event (i.e., upon incapacity), but you need to define exactly how the triggering event will be defined or you risk a question of whether or not the event has actually occurred and who is legally able to administer the trust.

The trust should state when it will terminate, whether or not it is revocable and should also designate remainder human beneficiaries or charitable organizations after the settlor’s death and the deaths of all of the animal beneficiaries.

A trust that is part of your will can only take effect and be funded upon the testator’s death. Speak to your estate planning attorney to determine which option is best for you. Your estate planning attorney will also assist in determining what administrative fees apply and will be able to compare the expenses involved in each type of trust.

The Colorado Bar Association welcomes your questions on subjects of general interest. This column is meant to be used as general information. Consult your own attorney for specifics. To submit general legal questions to the CBA, please email Courtney Gibb at cgibb@cobar.org.

]]>http://www.pagosasun.com/legal-lines-creating-a-trust-to-protect-your-pet/feed/0Obtaining information about frackinghttp://www.pagosasun.com/obtaining-information-about-fracking/
http://www.pagosasun.com/obtaining-information-about-fracking/#respondThu, 12 Sep 2013 21:00:47 +0000http://www.pagosasun.com/?p=15991Question: How do I get information about fracking on or near my property?

Answer: Any person interested in learning about hydraulic fracturing operations on or near their property can find information at the Colorado Oil and Gas Conservation Commission (“COGCC”), their local government and from a website called Frac Focus. Readily available information includes the well location, the identity of the well operator, the date of fracking operations, and chemicals used in the frack.

COGCC regulations require reporting of numerous pieces of information relating to any frack job, including the chemicals used in the frack.

Every oil or gas well in Colorado must be permitted by the COGCC. Basic information about the well, including the identity of the operator, the well location and the depth of the well must be submitted to COGCC as part of the permitting and drilling process. That information, as well as inspection and incident reporting information, can be obtained from the COGCC website at http://cogcc.state.co.us/.

In addition to permitting the well, operators must provide a notice of hydraulic fracturing to the COGCC at least 48 hours prior to commencing fracking operations. The COGCC must then promptly provide electronic notice of the operation to the local government. The official notice form includes the identity of the operator, the name and location of the well and the date of treatment.

Another important piece of information that must be reported, at least for fracturing treatments performed on or after April 1, 2012, is the chemicals used in the frack operation. Within 60 days after completion of the treatment, but not more than 120 days after commencement of the treatment, the operator must post on the chemical disclosure registry relevant information about the operation, including the name of the operator, identifying information about the well, the depth of the well, the base fluid (most commonly water) and each chemical added to the fluid, with its maximum concentration in percent by mass. However, the operator may withhold chemical identity and/or concentration information that is protected from public disclosure as a trade secret. To do so, the operator must submit a trade secret protection claim form to the COGCC and must still disclose basic descriptive information about the chemical to the chemical registry. The operator also must provide specific information about the chemical to a health professional who needs it to diagnose or treat an individual who was exposed to the chemical.

Disclosed chemical information is posted on Frac Focus (http://www.fracfocusdata.org/ ), which is a nation-wide registry of hydraulic fracturing chemical information. On Frac Focus, searches can be completed based on geographic area, operator, time period, well name, ingredient and chemical abstract service number (CAS #). The search interface includes easy-to-use drop-down menus to help narrow searches based on available information. For each registered fracking job, the database contains a uniform and easy to read spreadsheet, in .pdf format, describing the job by date, location, well, depth and total volume and listing the chemicals in the frac fluid, including trade names and ingredients. The Frac Focus website also contains general information about hydraulic fracturing and links to relevant state regulations.

The Colorado Bar Association welcomes your questions on subjects of general interest. The column is meant to be used as general information. Consult your own attorney for specifics. Send questions to CBA Attn: Heather Clark, 1900 Grant St., Suite 900, Denver, CO 80203 or e-mail hclark@cobar.org.

]]>http://www.pagosasun.com/obtaining-information-about-fracking/feed/0Legal Lines: Use of medical marijuana while on probationhttp://www.pagosasun.com/legal-lines-use-of-medical-marijuana-while-on-probation/
http://www.pagosasun.com/legal-lines-use-of-medical-marijuana-while-on-probation/#respondThu, 23 May 2013 21:00:14 +0000http://www.pagosasun.com/?p=10813Question: I am on probation and I have a medical marijuana card for my ailments. However, my probation officer insists I cannot use marijuana because it’s in violation of federal law. Do I have a right to use medical marijuana or do I need to follow the rules of my probation officer?

Answer: While many issues regarding the use, manufacture and acquisition of medical marijuana remain unsettled, the Colorado Court of Appeals considered the issue of a medical marijuana patient’s use of medical marijuana while on probation in the 2012 case of People v. Watkins.

In the case, the People of Colorado appealed a ruling by the trial court approving the use of marijuana for medical purposes by the defendant while he was on probation. Specifically, the People argued that, because possession or use of marijuana — even for medical purposes — is a federal offense, the trial court’s order approving such use conflicts with the probation requirement mandated by C.R.S. § 18-1.3-204(1) that states, “The court shall provide as [an] explicit condition of every sentence to probation that the defendant not commit another offense during the period for which the sentence remains subject to revocation.”

The Colorado Court of Appeals agreed with the People that an “offense” includes offenses under federal law, such as the use and possession of marijuana, even for medical purposes. The Court of Appeals cited the case of People v. Slayton, holding that probation is premised on a defendant leading a law-abiding life and that an “offense” includes any violation of a statute or ordinance for which confinement is authorized as a penalty.

Federal law provides for confinement for the use and/or possession of marijuana; therefore, the Colorado Court of Appeals decided in People v. Watkins that use of medical marijuana by a probationer violates the requirement that probationers not commit another offense during the term of probation. The court further ruled that a physician merely recommends that a patient use medical marijuana and that this recommendation does not constitute a formal prescription that would comply with state statute, which states a court may require probationers to refrain from any unlawful use of controlled substances or of any other dangerous or abusable drug without a prescription (see C.R.S.§ 18-1.3-204(2)(a)(VIII)). The court also said that even if defendants have a constitutional right to use medical marijuana, this may be curtailed during the term of the probationary sentence.

In conclusion, your probation office is correct in stating that you cannot use medical marijuana because it’s in violation of federal law and that would cause you to commit an offense while still on probation. Until People v. Watkins is challenged or marijuana becomes legal on a federal level, you do not have a right to use medical marijuana while on probation in Colorado.

The Colorado Bar Association welcomes your questions on subjects of general interest. This column is meant to be used as general information. Consult your own attorney for specifics. To submit general legal questions to the CBA, please email Sara Crocker at scrocker@cobar.org.

Legal Lines is a question-and-answer column provided as a public service by the Colorado Bar Association. Attorneys answer questions of interest to members of the public for their general information.

Question: How does the new waiver process change how to get a green card through marriage to a U.S. citizen?

Answer: As a general principle, a U.S. citizen can file a petition for his or her noncitizen spouse as the first step toward seeking lawful permanent resident, or “green card,” status for a noncitizen spouse. However, the noncitizen spouse is usually only eligible to apply for the green card from within the United States if he or she entered the country with a visa. This means that for most people who entered the U.S. illegally, they are required to leave the U.S. in order to apply for their green card at a consulate abroad.

Inadmissibility: The problem for those seeking green cards through consular processing is that as soon as they leave the U.S. to attend an immigrant visa appointment at the consulate, many trigger grounds of inadmissibility that prevent their immigrant visas from being approved. Those who have spent six months to a year of unlawful presence in the U.S. will trigger a three-year ground of inadmissibility with their exit from the U.S. Those who have accrued more than one year of unlawful presence in the U.S. trigger a 10-year ground of inadmissibility with their exit from the country. The noncitizen spouse of the U.S. citizen will thus be barred from returning to the U.S. for either three or 10 years, unless granted a waiver of inadmissibility.

Waivers of Inadmissibility: Both the three- and the 10-year bars can be waived if the applicant can prove that his or her absence from the U.S. is causing “extreme hardship” to the spouse or parents of the applicant. Traditionally, applicants can expect to spend up to 18 months outside the U.S. before receiving a decision on their waiver applications.

The provisional waiver: Since March 4, the Department of Homeland Security began accepting applications for provisional waivers. The new process is aimed at shortening the time U.S. citizens are separated from their immediate relatives while those family members are obtaining immigrant visas. Basically, for those who qualify, the provisional waiver allows an applicant to apply for the waiver before leaving the U.S. to attend the immigrant visa interview at the consulate abroad.

This allows the applicant to stay in the U.S. while the waiver application is processed. The provisional waiver does not change who is eligible for waivers of inadmissibility — it only changes the process for certain people who were already eligible for certain waivers of inadmissibility.

To be eligible for the provisional waiver, the applicant must:

• be over 17 years of age;

• be the spouse, child or parent of a U.S. citizen;

• have an approved immigrant visa petition;

• have paid the required Department of State immigrant visa processing fee;

• be able to demonstrate that a denial would cause extreme hardship to the U.S. citizen spouse or parent;

• be physically present in the U.S. to file the application for a provisional unlawful presence waiver and provide biometrics;

• not have been scheduled for an immigrant visa interview by DOS before Jan. 3; and

• meet all other requirements for the provisional unlawful presence waiver as detailed in 8 CFR§ 212.7(a) and the Form I-601A and its instructions.

The provisional waiver will not waive any ground of inadmissibility other than the three- and 10-year unlawful presence bars and will therefore not be effective for those who will require waivers for past immigration fraud or inadmissibility caused by criminal convictions.

Detailed information about the provisional waivers is available at USCIS.gov.

The Colorado Bar Association welcomes your questions on subjects of general interest. This column is meant to be used as general information. Consult your own attorney for specifics. Send questions to the CBA attn: Sara Crocker, 1900 Grant St., Suite 900, Denver, CO 80203 or email scrocker@cobar.org.

Legal Lines is a question and answer column provided as a public service by the Colorado Bar Association. Attorneys answer questions of interest to members of the public for their general information.

]]>http://www.pagosasun.com/legal-lines-provisional-waiver-to-the-green-card-process/feed/0Legal Lines: Legal mistakes of same-sex couples when combining householdshttp://www.pagosasun.com/legal-lines-legal-mistakes-of-same-sex-couples-when-combining-households/
http://www.pagosasun.com/legal-lines-legal-mistakes-of-same-sex-couples-when-combining-households/#respondThu, 25 Apr 2013 21:00:56 +0000http://www.pagosasun.com/?p=9581Question: If my same-sex partner and I plan to combine our households, what are things I should be aware of?

Answer: When any couple enters into a long-term relationship, each party brings his or her own financial assets. For couples who can legally marry, there is a statutory definition of which property is “separate” from the marriage and which property is “marital property.” The same is true for couples who never legally marry but instead have a common law marriage. However, for same-sex couples, there is a distinctive lack of statutory or other guidelines that detail how the financial estate of each party will be treated in the event of the dissolution of the relationship.

As a result, when same-sex couples are combining households and financial estates, it is important for each party to detail how the couple’s individual and joint financial history will be treated in the event of dissolution.

The most common mistake couples make is failing to document the assets and debts they are bringing into the relationship and failing to make agreements as to how those assets and debts will be allocated at dissolution. For instance, assume one partner enters the relationship with $10,000 in credit card debt and the other partner enters the relationship with $10,000 invested in a mutual fund portfolio. During the next 10 years, the parties jointly pay down the credit card and jointly contribute to the investment portfolio. At the dissolution of the relationship, which party is responsible for the remaining debt on the credit card and which party is entitled to receive the investment account? Should each party be allocated a percentage of these items? These are the types of questions that, if left unaddressed, can lead to expensive and time consuming litigation.

To avoid these issues, couples should invest the time in creating a domestic partnership agreement or other form of contract outlining the assets and liabilities each party is bringing into the relationship, how those assets and liabilities will be treated during the relationship and how those assets and liabilities will be allocated at dissolution. In addition, these agreements should include a discussion of how jointly acquired assets and debts will be allocated at dissolution.

The second common legal mistake same-sex couples make when combining households occurs in the purchase of real estate. In many instances, only one party will be placed on the mortgage and title of the property despite the fact that it is the intention of the parties to own the property jointly and to jointly contribute to the equity in the property. If the relationship ends, the lack of joint ownership of the property creates expensive litigation possibilities, because the parties must show each party’s ownership interest in the property as well as each party’s percentage share of equity in the property. Similarly, many couples are unaware of the fact that should title to the property be transferred out of the name of one partner into the name of the other partner, such a transfer many trigger the “due on sale” clause in the mortgage, causing the entire mortgage to become due at the time of transfer.

As a result, to the extent that the parties intend to be joint owners of the property and to jointly contribute to the equity of the property over time, the parties should consider jointly titling the property and jointly obligating each party on the mortgage. When both parties are equally invested and equally obligated, allocating any real estate when a relationship ends is much easier. In the event that a joint obligation is not possible, it is imperative that the parties create a contractual agreement outlining each party’s ownership interest, rights and responsibilities regarding the real property at the time of purchase.

The Colorado Bar Association welcomes your questions on subjects of general interest. This column is meant to be used as general information. Consult your own attorney for specifics. Send questions to the CBA attn: Sara Crocker, 1900 Grant St., Suite 900, Denver, CO 80203 or email scrocker@cobar.org.

]]>http://www.pagosasun.com/legal-lines-legal-mistakes-of-same-sex-couples-when-combining-households/feed/0Legal Lines: Impact of the passage of Amendment 64http://www.pagosasun.com/legal-lines-impact-of-the-passage-of-amendment-64/
http://www.pagosasun.com/legal-lines-impact-of-the-passage-of-amendment-64/#respondThu, 29 Nov 2012 00:23:21 +0000http://pagosasun.com/wordpress/?p=2626Question: Amendment 64, the initiative to regulate marijuana like alcohol, was passed by Colorado voters on Nov. 6. What will be allowed under the new amendment?

Answer: Amendment 64 was created to increase individual freedoms, enhance revenue for public purposes and to use Colorado law enforcement and judicial resources more efficiently. In order to achieve these goals, Amendment 64 legalizes the recreational use of marijuana for individuals who are 21 and older; taxes and regulates the sale of recreational marijuana, and provides for the regulated production and distribution of industrial hemp.

Under Amendment 64, individuals who are 21 and older will be able to cultivate up to six marijuana plants, three of which are flowering and three of which are vegetating. These individuals will be able to keep all of the marijuana harvested from these plants, so long as the harvested marijuana is stored on the same premises where the marijuana plants were grown.

Individuals will also be able to possess, use, display, purchase or transport up to an ounce of marijuana, as well as marijuana accessories.

Individuals who are 21 and older also will be able to transfer up to an ounce of marijuana to another individual over the age of 21 without receiving money.

However, public consumption of marijuana, as well as driving under the influence of marijuana, will remain a crime in Colorado.

Amendment 64 allows for the creation of recreational marijuana businesses, similar to the current medical marijuana businesses. Amendment 64 does not affect medical marijuana centers, and holders of a medical marijuana business license also will be able to apply for and possess a recreational marijuana business license.

Amendment 64 sets a deadline of July 1, by which time the Colorado Department of Revenue must adopt regulations for the implementation of commercial marijuana businesses, including cultivation facilities, manufacturing facilities and retail sales facilities.

Amendment 64 provides that the state Legislature shall enact an excise tax on the sale of marijuana. Amendment 64 mandates that this excise tax is not to exceed 15 percent. However, the percentage of the tax can be adjusted after Jan. 1, 2017, by the General Assembly. The first $40 million in tax revenue generated from the sale of recreational marijuana is earmarked for the Public School Capitol Construction Assistance Fund. Amendment 64 also directs the Colorado General Assembly to enact legislation governing the cultivation, processing and sale of industrial hemp by July 1, 2014.

Unlike Amendment 20, Colorado’s medical marijuana constitutional provision, Amendment 64 does not restrict recreational use of marijuana to only Colorado residents. This lack of residency requirements allows individuals over the age of 21 to travel to Colorado and use and possess marijuana while in Colorado. Furthermore, Amendment 64 does not expressly prohibit Amsterdam-style “coffee shops” or businesses that allow customers to consume marijuana onsite.

The Colorado Bar Association welcomes your questions on subjects of general interest. This column is meant to be used as general information. Consult your own attorney for specifics. Send questions to the CBA attn: Sara Crocker, 1900 Grant St., Suite 900, Denver, CO 80203 or email scrocker@cobar.org.

About Legal Lines

Legal Lines is a question and answer column provided as a public service by the Colorado Bar Association. Attorneys answer questions of interest to members of the public for their general information.